A step closer to consensus

General Pervez Musharraf has imparted to Pakistan's Kashmir policy a dose of stark realism.

EVERY leader of Pakistan left his own distinctive imprint on the Kashmir dispute. It was Ayub Khan who courageously made a break from the past. He was prepared to drop the demand for plebiscite if India would offer something beyond the status quo. His Foreign Minister Manzur Qadir said, in a speech at the Pakistan Institute of International Affairs on March 12, 1960, that while plebiscite, under the United Nations resolutions, was an agreed solution, "if somebody has a solution other than ours, let him suggest it. We can at least start thinking about it." In a speech in Lahore on March 23, 1962, Ayub Khan said that if a plebiscite "was not the best solution" for Kashmir, "then let us have another solution satisfactory to all".

But India never offered anything significant beyond the ceasefire line. In the Swaran Singh-Bhutto talks, India offered nearly 3,500 square miles more, "the Handwara salient" included.

Zulfikar Ali Bhutto's oral assurances to Indira Gandhi in Shimla on July 2, 1972 were far short of what is claimed in India but went far beyond what is claimed in Pakistan. They fell through when Indira Gandhi refused to go to Pakistan and pursue the Shimla Pact.

Zia-ul-Haq launched a covert operation in Kashmir in 1984-86. The first bomb blast, in this operation, went off at the General Post Office in Srinagar on July 31, 1988. The Second Kashmir Crisis had begun. A dormant issue was reactivated and alienated people's self-assertion mounted with an increase in the militancy which won popular support. Nearly two decades later, neither the popular alienation nor the militancy shows any sign of subsiding.

However, with Zia's death in an air crash on August 17, 1988, political control and direction over the operation suffered. Force unrelated to diplomacy is sterile and destructive. Diplomacy without the backing of force is impotent. Hence, India's support to the Liberation Tigers of Tamil Eelam (LTTE) in the 1980s. But here, again, political control went awry.

Such operations have to be controlled. Zia knew that there was a point beyond which he could not and should not go. His successor Benazir Bhutto was no leader. Nor was Nawaz Sharif. By the mid-1990s, both sides lost control. Pakistan introduced foreigners ("guest militants"). India set up a force of renegade militants, the Ikhwanis, to act as informants with a licence to kill anyone with impunity. Both innovations wreaked havoc and continue to wreak havoc.

Neither Benazir Bhutto nor Nawaz Sharif was competent enough to cope with Zia's legacy. The back channel which Nawaz Sharif and his Indian counterpart A.B. Vajpayee set up at Lahore in 1999 (through Niaz Naik and R.K. Mishra) was a bad joke.

It is to General Pervez Musharraf's credit that he imparted to Pakistan's Kashmir policy a dose of stark realism; altered it in five major respects and has narrowed the possibilities of a solution to one major issue. The five major reversals are: 1) setting aside U.N. resolutions on plebiscite; 2) substituting self-governance for self-determination; 3) discarding religion as a criterion; 4) advising Kashmiris to talk to New Delhi; and 5) accepting the Line of Control (LoC) provided it is coupled with joint management, an issue pre-eminently susceptible to compromise. Musharraf has brought the dispute to the very gates of a solution.

Diplomatically there was no common ground hitherto on which negotiations could profitably begin. It is Musharraf's distinctive contribution that he has identified and developed that area. Indian criticisms of his Kargil venture in 1999 are perfectly valid. His book (In the Line of Fire: A memoir; Simon & Schuster; pages 352, 18.99) sheds little light on its motivation, its genesis, and its development. Nor does it record any regret over its failure. Pakistan's case suffered militarily, diplomatically and morally.

He is too intelligent not to have discerned that. Less than a year after he assumed power in October 1999, he backed the Hizbul Mujahideen chief Syed Salahuddin's offer of unilateral ceasefire on July 24, 2000. In March 2001 he gave one of his first interviews to an Indian journalist suggesting that the two countries meet half-way. At the famous Agra breakfast, on July 16, 2001, Musharraf, now President, enunciated four points. The media took little notice of them. Most echoed the official line that Musharraf was belligerent. It took a participant at the breakfast, Shekhar Gupta, Editor of the Indian Express, two and a half years to acknowledge that "if you go through the tapes of the Agra breakfast, you would underline things Musharraf said that no Pakistani leader had said until then". (Indian Express, January 31, 2004). His testimony would have been more relevant if it had been delivered immediately after the event to counter the Bharatiya Janata Party (BJP) government's lies.

The media have shown little interest in the memoir's damning account of Agra. Vajpayee's bald denial on October 1 confirms it. Specific charges must be countered with specific assertions of what happened, not with sweeping denials. The memoir has been discussed for its portrayal of the author's career. Neglected is his contribution to a resolution of the Kashmir dispute. Far from being discouraged by the rude response, he went on to articulate, from time to time, ideas for public debate.

When he was Prime Minister, Vajpayee promised, with characteristic flamboyance and insincerity, on New Year's Day 2001 in his Kumarakom Musings, that he would "seek a lasting solution to the Kashmir problem". In this quest, "both in its external and internal dimensions, we shall not traverse solely on the beaten track of the past". The promise was broken six months later at Agra. The ideas he hinted to have developed for a new approach still lie sealed hermetically, for nearly six years within his bosom. In contrast, Prime Minister Manmohan Singh stated the parameters within which a solution is possible in an interview given to British journalist Jonathan Power almost on the day he was sworn in Prime Minister in May 2004: "Short of secession, short of redrawing boundaries, the Indian Establishment can live with anything. Meanwhile we need soft borders - the borders are not so important."

By then Musharraf had declared, on December 25, 2003, that in the quest for accord "we have left that [U.N. resolutions on plebiscite] aside". The President elaborated his ideas in nine major pronouncements.

1. October 25, 2004: Identify seven regions; demilitarise them and change their status.

2. April 18, 2005, in New Delhi: The LoC cannot be made permanent but it can and should be made "irrelevant". Boundaries "cannot be altered".

3. May 20, 2005: "Self-government must be allowed to the people of Kashmir." Religious basis is ruled out.

4. June 14, 2005: Complete independence is ruled out.

5. October 21, 2005: Open the LoC.

6. January 8, 2006, in an interview to Karan Thapar: (a) "Something between autonomy and independence. I think self-governance fits in well"; (b) "Let us [India and Pakistan] work out self-governance and impose the rules" in both parts. Kashmiris will be involved; (c) demilitarisation, and (d) joint management. "There have to be subjects which are devolved; there have to be some subjects retained for the joint management" (e) India and Pakistan will be "guaranteeing it and overseeing it" with each "having a stake in guaranteeing the situation in the other half of Kashmir".

7. January 25, 2006: What "we cannot give to them [Kashmiris] and what residual powers would be left with the joint management mechanism, which would have people from Pakistan, India and the Kashmiris" should be defined.

8. June 23, 2006, to CNBC: "I am proposing demilitarisation as a concept of a final settlement actually. Demilitarise Kashmir, give self-governance to the people of Kashmir and have a joint management arrangement on top... we could debate and modify the idea... I think it is the people of Kashmir themselves who need to now generate the kind of ideas and pressure on the Indian Government... . I am very glad to say that Prime Minister Manmohan Singh has been interacting with all groups of Kashmiris and I am quite sure he is talking of some kind of a resolution obviously.

9. August 1, 2006, interview to this writer for Frontline:

Prime Minister Manmohan Singh has made four important pronouncements besides his interview to Jonathan Power in May 2004. 1. September 16, 2005, in New York: It would require ingenuity to reconcile the three positions: (a) the Indian position that the border would not be redrawn (b) the Pakistani position that the status quo was unacceptable and (c) the Prime Minister's own formulation that while the border would not be redrawn, it was possible to make the border irrelevant (Harish Khare in The Hindu, September 17, 2005). 2. February 25, 2006, at the First Round Table Conference (RTC) in New Delhi. "There is a need to evolve a common understanding on autonomy and self-rule for the State of Jammu & Kashmir and I am confident that working together with all groups, both within and outside the mainstream, we can arrive at arrangements within the vast flexibilities provided by the Constitution, arrangements which provide real empowerment and comprehensive security to all the people of Jammu and Kashmir." 3. March 24, 2006, in Amritsar, Manmohan Singh made four points: (a) a step-by-step approach; (b) dialogue by both India and Pakistan "with the people in their areas of control". (c) "I have often said that borders cannot be redrawn but we can work towards making them irrelevant - towards making them just lines on a map. People on both sides of the LoC should be able to move more freely and trade with one another; (d) "The two parts of Jammu & Kashmir can with the active encouragement of the governments of India and Pakistan, work out cooperative consultative mechanisms so as to maximise the gains of cooperation". 4. May 25, 2006, at the RTC in Srinagar the Prime Minister made the last point somewhat stronger still by posing the question. "What are those institutional arrangements which can bring people from both sides of the LoC closer to each other?"

Thus both leaders are agreed on three points; (1) Jammu & Kashmir cannot be made independent; (2) borders cannot be redrawn (that is, the State cannot secede from the Union of India); and (3) the LoC can be made "irrelevant".

The concurrence on some important points is remarkable, it is almost textual. The Prime Minister told the media on September 17, 2006, as he was returning from the Non-aligned Movement (NAM) meeting in Havana: "President Musharraf recalled what I had stated before that borders cannot be redrawn, and his statement that they cannot accept the LoC as a permanent solution. We both agreed that we have to find a via media to reconcile these two positions. And I do believe that we should work in all sincerity to think out of the box to deal with this situation."

Compare this with the President's remarks to Geo TV on October 23, 2006. He was asked whether he was not feeling some "frustration" since Manmohan Singh had said that borders will not be redrawn though the President had shifted his stand from Pakistan's 60-year-old position (of U.N. resolutions) and offered many options. Musharraf replied: "No. They say that the borders will not be drawn a second time. We say that the LoC is not acceptable as a permanent border. We need to find a via media between these two positions which would mean self-governance with a joint management system at the top for both sides of the LoC and you make the LoC irrelevant."

Not once has Musharraf advocated abrogation of the LoC. Abrogation or rescission denotes an actual fact. Irrelevance is an expression of opinion. Manmohan Singh's remark "just lines on a map" provides the clue. The line remains; but only to indicate limits of two sovereign jurisdictions. It will, however, cease to divide the people of Jammu and Kashmir - and thus become "irrelevant" to their lives. Dr. B.R. Ambedkar was wont to distinguish between a bar and a hyphen. A bar divides, a hyphen separates and unites. The LoC will cease to be a bar. It will become a hyphen; a de jure division but de facto unity of the State. Both leaders are agreed on the need to find a via media between two positions.

Musharraf has indicated what it could be, in his remarks to the South Asia Free Media Association (SAFMA) on May 20, 2005. After restating the three principles - no redrawing of borders; no permanence to the LoC and borders becoming irrelevant - he pointedly hinted: "The solution exactly lies somewhere in a compromise of the three. In fact, it lies in the third statement that is boundaries becoming irrelevant. We need to find a via media."

In plain words, if the LoC is rendered "irrelevant", it will become acceptable if - and only if - a joint mechanism is also put in place and Kashmiris are conferred self-governance.

Since the LoC's irrelevance does not entail Jammu and Kashmir's secession from India, we can and should have no objection to it; nor, to self-governance. The issue, therefore, narrows down to joint mechanism or a system which allows each country, India and Pakistan, a say in the other side of the LoC. Can it be married to the "institutional arrangements" the Prime Minister proposed on May 25, 2006?

This was the state of the record when this writer met President Pervez Musharraf in Islamabad on August 1, 2006 for an interview to this magazine. Except for the interview to CNBC, all other statements were analysed in the writer's article "A Working Paper on Kashmir" (Frontline, March 10 and 24, 2006). The interview with President Musharraf was a follow-up to the "Working Paper" (Frontline, August 25, 2006). It was intended to elicit clarification on his pronouncements, in the light of the Prime Minister's pronouncements, in order to ascertain the areas of common ground and the precise points of difference.

The President made these significant concessions to India's position: 1. "Demilitarisation can be by steps"; Begin as talks begin and end with conclusion of an accord (page 13, column 1). 2. The Prime Minister's suggestion, of "institutional arrangements" between the two parts of Kashmir "is a starter. This is a very good term". The term "institutional arrangements" is "what I think is correct. But we need to define the modalities" (page 14, columns 1 and 2). 3. Asked if an irrelevant LoC meant that "de jure the sovereignties end at the line on the map, but de facto the State becomes one", the President replied: "Yes, that kind of an arrangement... needs discussion and thought" (page 14, column 3). 4. "We need to define what is the maximum autonomy that you are talking of and what is the self-governance that I am talking of. We need to see how the people should govern themselves (page 13, columns 2&3). Also "we have to find a word which replaces `autonomy'. Because it creates negative optics." He suggested "a joint framework for self-governance" (page 15, column 1). An India-Pakistan accord on the quantum of powers each parts of Jammu & Kashmir should enjoy in equal measure would meet these criteria.

Obviously Pakistan cannot accept in a settlement what it already has. The heart of the problem is to devise an "institutional arrangement" which does not abrogate the LoC yet gives Pakistan - and India - as the President put it "some responsibility and some commitment; some involvement, I would say, in having their say on both sides of the border" (page 13, column 3 and page 14, column 1).

"Joint management" which spells joint control is a non-starter. It would be a form of condominium unworkable as well as an infringement of sovereignty. Clearly, what Pakistan seeks is something more than the LoC which would enable it to sell the accord to its people; not an abrogation of the LoC. The single most important aspect to this is the concept of "joint management" which allows both sides "some responsibility", "commitment", or "involvement" - vague words which reveal considerable play at the joints and room for negotiation in order to evolve an arrangement which meets Pakistan's concern for a "say" as well as India's that the "say" does not affect sovereignty.

The President's memoir was in the press when I met him on August 1. The "four elements" he has formulated on page 303 of the book, in greater precision than before, facilitate fleshing out the themes and provide ample ground for constructive engagement (see box).

The cautionary words at the end suggesting that the "elements" are open to modification are characteristic of his flexibility. They were stated in interviews to Karan Thapar (January 8, 2006) and to CNBC (June 23, 2006) as well. Let us analyse the four elements closely.

The query in the first element - "all these [regions] on the table for discussion" - and the hint of "give and take" reveal his concern for the Northern Areas on which the Indian foreign policy establishment has recently developed a touching interest for reasons not hard to seek. The Northern Areas must be part of any accord for the simple reason that they form part of the State of Jammu & Kashmir.

As Chief Minister of the State, Sheikh Abdullah countered Zia-ul-Haq's claim that the Northern Areas are not part of the State by publishing a White Paper entitled "Statement of Facts on Gilgit, Hunza, Nagar, Yasin, Ponial, Chitral and Skardu" which established that they form part of Jammu & Kashmir. Incidentally the State's official map of 1938-39 attached to the White Paper follows the Karakoram watershed; not the one which we unwisely claim as the boundary with China.

On September 14, 1994, the Supreme Court of Pakistan-Occupied Kashmir (POK) ruled that "the Northern areas are a part of J&K State but are not a part of Azad J&K as defined in the Interim Constitution Act 1974" (the POK's Constitution).

A fair compromise would be to extend self-governance to these areas and to Ladakh while allowing both governments to adopt in their discretion measures that their security interests dictate. Neither side will have the right to a "say" on the measures the other takes in these areas of strategic importance, Ladakh and the Northern Areas. The process of demilitarisation, as the President himself indicated, can begin with initial measures and conclude as the accord is carried out.

There is a clear reversal of priorities in elements 3 and 4. The President suggests that India and Pakistan deal in the joint management mechanism with "residual subjects ... that are beyond the scope of self-governance". Surely, the proper course is to identify, first, the subjects for that mechanism to deal with and then to devolve the residue on the institutions for self-governance.

It would seem that Musharraf has in mind essentially a New Delhi-Islamabad mechanism with Srinagar and Muzaffarabad as junior partners. He suggests joint management, not joint control, still less joint sovereignty. To be realistic, India and Pakistan cannot run a municipality together. The fundamental principle that each country must have some "say" on the other part of Jammu & Kashmir is undeniable if Pakistan is to accept the LoC, besides, of course, its "irrelevance". Musharraf calls joint mechanism the "most important" of the four elements.

But Pakistan must (a) explain the raison d' etre of the joint mechanism, (b) identify the subjects it should deal with; and (c) give some idea of its structure. What are the matters it would deal with? What is its purpose? How will it work in the event of disagreement between the two sides? If each has a veto, a breakdown is guaranteed. So also if it is purely consultative. Aware of the impotence of the mechanism, neither side will walk the extra mile to bring the other on board. It is equally obvious that the "mechanism" cannot exercise executive power.

The first step, then, is to define the raison d'etre of the joint mechanism. Once that is clearly understood and agreed, the rest falls into place. There can be no sharing of power or responsibility. Defence and foreign affairs must vest in each country exclusively in respect of the part of Jammu & Kashmir within its sovereignty. But there can be situations in which exercise of sovereign power by one country affects the interests and arouses the concern of the other. So also if the interests of Jammu & Kashmir as a whole are involved. We need a joint mechanism for specified purposes and with precise functions. It must fall between mere consultative and a veto.

The best course is to begin from the bottom and establish an All Jammu and Kashmir Council of Ministers comprising two Chief Ministers and two other Ministers on each side who would meet at least four times a year to discuss specific subjects of common interest on the lines of the North-South Council for Northern Ireland and the Republic of Ireland set up by the Good Friday Agreement of 1998. It will take decisions by consensus and will function as an agency for coordination and consultation between the two parts of Jammu & Kashmir. It will not wield any executive power.

If there is disagreement in the Council, it would be open to either side to refer the matter to a Joint Commission comprising the Prime Ministers, of the two countries or any Ministers they nominate for the Commission. Additionally, the Kashmir Council can refer the matter to the Assemblies on both sides for their opinion.

This elaborate procedure will serve as a deterrent to arbitrariness, whether in raising or rejecting an issue. In the final analysis, each Chief Minister will be free to decide the matter. But he will not be working in a vacuum. He will be answerable to public opinion and to the legislature in a setup in which the LoC will be "just a line on a map".

So much for the substantive aspect. Now for the procedural aspect - how do we proceed toward a solution of the Kashmir dispute? The following is a rough outline of the process, the sequence in which each step in the process must be taken:

1) First and foremost India and Pakistan must agree on the fundamentals of the joint management mechanism by reconciling the President's ideas of "joint management" with the Prime Minister's offer of "institutional arrangements". The President is prepared to talk on this as "a starter. This is a very good term... But we need to define the modalities". 2) After accord is reached on the mechanism, and the subjects it will deal with, the two States must draw up a broad framework for self-governance of the two parts of Jammu & Kashmir, as members of their respective federation, drawing on the list of topics for legislation in both countries with guarantees to each other and to the people of Jammu & Kashmir as a whole that self-governance will not be subverted, as Article 370 of India's constitution has been, or made a cruel joke like the set-up in POK. 3) The scheme must be published for public debate. Fresh elections must be held to legislative Assemblies in both parts of Jammu & Kashmir. The MLAs would meet in an All Jammu and Kashmir Convention to discuss the scheme. 4) India and Pakistan will modify the draft scheme in the light of the public debate and give it legal efficacy in accordance with their respective constitutional procedures.

Other elements of an India-Pakistan Agreement on Kashmir are discussed in the "Working Paper"; for example, a Tribunal to decide disputes if a subversion of self-governance or of the Agreement is alleged by either side.

The agreement on Kashmir cannot be concluded in one go, obviously. Public opinion must be prepared. But the dispute is over-ripe for solution. Delay will add to the frustration. What Kashmir is yearning to see is tangible significant progress, a first step which puts the process on the rails, irreversibly. That can be done only by India and Pakistan resolving the basics of the main issue - the joint management mechanism and giving a directive to officials and experts to fill in its details along with the drafting of a scheme of self-governance.

That first step can be taken only by the top leaders at a summit. Manmohan Singh and Pervez Musharraf will not need more than three hours, at the most, to settle the nikahnama, the deed recording the marriage of "joint management" with "institutional arrangements". Only three matters are to be spelt out: the terms of reference defining the objects of the institution; its powers and functions and its composition and structure. Heavens forbid, if subsequently the accord on joint management falls through for political reasons, it will yet serve as a model for later accords to build on.

The Good Friday Agreement of April 10, 1998 on Northern Ireland was based largely on the aborted Hillsborough Agreement of November 15, 1985.

The dimensions of the Kashmir dispute are narrowed. A broad consensus has emerged. It reflects the best interests of India, Pakistan and, above all, the people of Jammu & Kashmir.

Musharraf formula

1. First, identify the geographic regions of Kashmir that need resolution. At present the Pakistani part is divided into two regions: Northern Areas and Azad Kashmir. The Indian part is divided into three regions: Jammu, Srinagar and Ladakh. Are all these on the table for discussion, or are there ethnic, political, and strategic considerations dictating some give and take?

2. Second, demilitarise the identified region or regions and curb all militant aspects of the struggle for freedom. This will give comfort to the Kashmiris, who are fed up with the fighting and killing on both sides.

3. Third, introduce self-governance or self-rule in the identified region or regions. Let the Kashmiris have the satisfaction of running their own affairs without having an international character and remaining short of independence.

4. Fourth, and most important, have a joint management mechanism with a membership consisting of Pakistanis, Indians, and Kashmiris overseeing self-governance and dealing with residual subjects common to all identified regions and those subjects that are beyond the scope of self-governance.

This idea is purely personal and would need refinement. It would also need to be sold to the public by all involved parties for acceptance.